On September 9, 2021, President Biden introduced his administration’s “Plan to Stop the Delta Variant and Boost COVID-19 Vaccinations,” which will be instituted through two executive orders that will mandate vaccines for employees of the Executive Branch of the federal government and for employees of federal contractors and subcontractors.

Additionally, President Biden announced that he has instructed the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) to issue an emergency temporary standard (ETS) requiring vaccinations and/or routine testing for employees of employers with more than 100 employees.

President Biden’s Executive Order Mandating Vaccinations for Federal Employees

President Biden’s first executive order, Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees (the “Federal Employee EO”), requires each federal agency to implement a program to require COVID-19 vaccinations for all of the agency’s employees, with exceptions only as required by law, such as for medical or religious reasons. The Federal Employee EO also directs the Safer Federal Workforce Task Force (the “Task Force”) to issue guidance regarding the vaccine mandate for federal employees.

On Monday, September 13, 2021, the Task Force published an update to its “COVID-19 Workplace Safety: Agency Model Safety Principles.” The update provides that “Federal Executive Branch employees must be fully vaccinated, except in limited circumstances where an employee is legally entitled to a reasonable accommodation. Agencies must work expeditiously so that their employees are fully vaccinated as quickly as possible and by no later than November 22, 2021.” The update also notes that “[v]isitors to Federal buildings who are not fully vaccinated or who decline to provide information about their vaccination status must provide proof of a negative COVID-19 test from no later than the previous 3 days prior to entry to a Federal building.”

The Task Force website states that implementation guidance for the Federal Employee EO is forthcoming and will be “released soon.”

President Biden’s Executive Order Mandating Vaccinations for Employees of Federal Contractors and Subcontractors

President Biden’s second executive order, Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors (the “Federal Contractor EO”), is intended to promote economy and efficiency in federal procurement by ensuring that the parties that contract with the federal government provide adequate COVID-19 safeguards to their workers performing on or in connection with a federal government contract (or contract-like instrument). To accomplish this, the Federal Contractor E.O. directs the Federal Acquisition Regulatory Council to create a new contract clause that will be inserted into federal contracts. The new clause will require contractors and subcontractors, for the length of the contract, to comply with all guidance published by the Task Force for contractor and subcontractor workplace locations. The guidance, which is to be developed by the Task Force by September 24, 2021, will likely require all employees of contractors and subcontractors to be vaccinated unless they are subject to an exemption, such as a medical or religious accommodation. Accordingly, federal contractors and subcontractors will be contractually required to comply with the new COVID-19 protocols that are being developed by the Task Force on or before September 24, 2021. We anticipate that the new contract clause will include flow-down provisions that will require the new clause be included in all tiers of federal subcontracts.

Key to President Biden’s Federal Contractor EO is understanding the coverage and scope of the new contract clause. The EO seems to generally be aimed at new contracts and contract-like instruments. Starting October 15, 2021, the contract clause shall apply to:

• all new contracts or contract-like instruments;
• new solicitation for contracts;
• new extensions or renewals of contracts; and
• the exercise of options for existing contracts.

The following types of contracts are included in the scope of the Federal Contractor EO:

• procurement contracts for services, construction, or leasehold interests in real property;
• contracts for services covered by the Service Contract Act;
• contracts for concessions (including concessions contracts otherwise excluded by the DOL regulations); or
• contracts entered into with the federal government in connection with federal property or lands and related to offering services for federal employees, dependents, or the general public.

The Federal Contractor EO does not apply to:

• grants;
• contracts or agreements under the Indian Self-Determination and Education Assistance Act;
• contracts for less than the “simplified acquisition threshold,” which is generally defined as contracts for less than $250,000;
• employees performing work outside of the United States; or
• subcontracts solely to provide products.

OSHA’s Anticipated Emergency Temporary Standard Requiring Vaccinations or Testing for Employees of Large Employers

President Biden has directed OSHA to develop an Emergency Temporary Standard that mandates all employers that have 100 or more employees to require employees to either get vaccinated or provide a weekly negative COVID-19 test result prior to entering the workplace. We expect this requirement will impact over 80 million workers in the private sector. OSHA’s ETS is anticipated to also require covered employers to provide paid time off for the time it takes workers to get vaccinated.

In order for OSHA to issue an ETS, there must be evidence that

1. “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards,” and
2. “that such emergency standard is necessary to protect employees from such danger.”

OSHA has indicated that it will issue the ETS within the coming weeks. Until the ETS is actually issued, we are unable to address how employers should implement the standards and requirements. Keeping that in mind, there are certain things that covered (or potentially covered) employers may want to consider in preparation for OSHA’s vaccination ETS, such as:

• Whether the ETS will apply to their workplaces;
• How to identify vaccinated and unvaccinated employees;
• How employees report the results of testing;
• Whether to require proof of vaccination, and if so, what proof to require;
• Whether to pay for test kits or testing, and if so, how to do so;
• How to provide paid time off for vaccination and recovery;
• How to encourage vaccination among employees; and
• How to deal with employees who refuse both vaccination and testing.

Because of the widespread impact OSHA’s ETS on vaccinations for employees of large employers could have once it is issued, large employers should consider reaching out to their employment counsel in the near future for guidance on implementing the requirements of the ETS.